Troy Davis, Justice, & the Death Penalty

So proclaims the website dedicated to the exoneration of one death row inmate in Georgia. Whether one believes that the death penalty is ever appropriate, or in the innocence or guilt of that particular inmate, we should all agree that indeed innocence does matter.

As we examine the case of Troy Anthony Davis, we should care very much whether an innocent man was convicted of a crime which substantial evidence seems to indicate was committed by someone else. It is also worth examining several broader questions. Does the desire to gain convictions skew investigations to buoy the first plausible solution to the exclusion of other possibilities? Once convicted of a crime, are the barriers to considering continued claims or evidence of innocence too steep? Should the certainty of guilt be even higher for the application of the death penalty? When if ever is the death penalty appropriate, or as the American Bar Association claims, do inconsistencies and flaws in our system of justice warrant a moratorium on capital punishment?

Ironically, it may be his death row status which ends up triggering a new trial for Davis, with the possibility of exoneration. Yesterday, the Georgia Supreme Court heard arguments for and against granting such a trial, with an expected decision to be rendered sometime early next year. This observer sees a real need for re-examination of the process for granting new trials in cases where either faulty investigations, over zealous prosecution, coerced testimony, recantations, or new evidence casts doubt on former convictions - whether or not the death penalty is involved. That doesn't mean opening every case where an inmate claims innocence, or making it too easy for outside organizations to force trials when the case is not strong. But justice is not served by keeping the innocent behind bars in the name of having "someone" pay for the crime, upholding the standing of police or prosecutors, or appearing tough on crime.

The Innocence Project is doing great work in using DNA testing from former convictions to exonerate many who have been unjustly imprisoned. But physical evidence is not always available, as in the case of Davis, and common sense suggests that wrongful convictions are at least as high in such cases where eye-witness testimony is likely to have played a major role.

I am not claiming to know that Troy Davis is innocent. My window on the case is limited to what I've heard on radio, read online, and heard in conversation with Laura Moye, who is deputy director of Amnesty International's Southern regional office. I acknowledge that I am a long way away, and may have been swayed by the fact that "Davis' supporters were good at 'marketing' their cause", as DA assistant David Lock told Georgia's justices. Still, based on what I have learned, it seems more plausible that alternative suspect Sylvester "Redd" Coles is the actual perpetrator. And it is very difficult to accept that a new trial should not be granted in light of the recantations of 7 of the 9 original eyewitnesses. From a Savannah Morning News account

"If the prosecution witnesses are recanting to that extent and that they possibly perjured themselves, then the Supreme Court is doing the right thing [in considering whether to grant a new trial]," said William "Rusty" Hubbarth, vice president of the pro-death-penalty Justice For All in Austin, Texas. "I have never heard of a case like this where you have five or six witnesses recanting."

A Tragic Night

When off duty police officer Mark MacPhail responded to a commotion near a downtown Savannah Burger King at 1 AM on Aug. 19th of 1989, he discovered a homeless man, Larry Young, being pistol whipped. Before he had a chance to draw his pistol from his holster, Larry Young's attacker, seeing the officer's badge, shot and killed him. Witnesses hearing the shots saw three men fleeing the scene. This account, one of a series of five recent articles about the case appearing the Atlanta Journal-Constitution, gives what appears to be a fair summary about what is known about the sequence of events that evening, and what Troy Davis and Redd Coles each claim to have occurred. Davis' proximity to the site of two shootings on the same evening understandably directed suspicion his way, but the wantonly murderous behavior he is accused of, seems to fit better with Coles prior and subsequent behavior than with that of Davis. And two of the recanting witnesses have signed affidavits declaring that Coles was also present at the party earlier in the evening near to where another man was shot and injured. Why would Davis brutally assault the homeless man, when even Coles admitted that it was he who had the initial argument (over a beer) with him? Why did Coles show up at the police station with a high paid lawyer to finger Davis in the crime? Why did Davis so readily return from his subsequent trip to Atlanta when he discovered he was the subject of a manhunt, unless he felt confident that he would be absolved of the charges.

7 of 9 Recant

But the most compelling case for granting a new trial comes from the sworn affidavits recanting earlier testimony which implicated Davis, and suggesting police coercion in obtaining that testimony. The unfortunate homeless man who was the victim of the beating was detained by police for over an hour when he most needed medical attention. In pain and somewhat inebriated he finally signed a statement written by police without reading it, in order to gain his own release. Reading the details of each recantation, it is difficult to believe prosecutor's claims that Davis' family was able to pressure all of these witnesses to recant earlier testimony, risking perjury, not to mention the wrath of the still free Coles, simply out of sympathy for a man on death row.

Troy Anthony Davis has been in prison now for 18 years. That alone would be an extraordinary sentence for what, if his story is true, may have been a case of keeping bad company and using poor judgment in the aftermath of gunfire. And yet a new trial is all he currently is asking for.

The appeals process has been yet another story in this case, where procedural reasoning seems to trump new reasonable doubt, whether in the state's habeas court denial of his petition in 1977, or the impact of provisions of the Anti-terrorism and Effective Death Penalty Act of 1996 signed into law by Clinton, which restricted the power of federal courts to correct constitutional error in criminal cases, or the Federal 11th Circuit Court's denial of Troy's appeal in 2006, or the U.S. Supreme Court's refusal to hear his case.

This case has now gotten strong media attention, yet it is still not clear that a defendant who likely deserves at least a second trial will get one. How many other cases languish in obscurity where innocent prisoners will never receive a fair trial when they were originally denied one? In many cases - hopefully a large majority of them - our justice system where one is innocent until proven guilty works beautifully. We have a justice system which on the whole is worth fighting for, and is far better than that which existed in earlier centuries, or does exist in many places around the world. But two factors which stand as a threat to proper justice remain the inordinate influence of money and connections on the process, and the growing simplistic tough on crime attitude which vilifies the accused too early in the process, values numbers of convictions over certainty of justice, and turns a blind eye all too often on instances of police or prosecutorial misconduct.

Phillipe, perhaps the lack of comment is, in fact, a strong comment.
The appearance and success of (primarily) DNA has been a real bane to the prosecutorial side of the justice community. I’m sure there are MANY innocent people jailed and executed, but to take the “devils”’ side for a minute, probably 99% maintain innocence absolutely. The justice society is approached repeatedly with requests for reconsiderations and retrials. It doesn’t make it right, but the demand is far greater than the ability to give serious consideration to that. I,personally wish it were possible and that the resources were avilable to give those with any doubts, their second “day in court”. In the meantime, maybe the fact that these newer technologies are commonly used now, will prevent innocents from losing their freedom, or ultimately their lives.

In the meantime, maybe the fact that these newer technologies are commonly used now, will prevent innocents from losing their freedom, or ultimately their lives.

More, most probably, as proven indeed.
All, doubtfully.

Like any new technology, it has double edges. While DNA could innocent people, it could also make innocent people looks like guilty. Leaving someone else DNA but not yours on crime scene is nothing impossible.
But the most casual criminal cases would definitively benefit from crime scientific investigation.

Still, innocent people could be killed under death penalty, and for some like me it’s a risk not tolerable. Solution is very easy, though. Politically risky, but easy and it doesn’t leads your criminal rate to skyrock, as proven in every country who ban death penalty.

“I,personally wish it were possible and that the resources were avilable to give those with any doubts, their second “day in court”.”

The problem with that statement is, under our current legal system, the prosecution is under obligation to prove beyond a reasonable doubt that a person is guilty before a conviction can be obtained. With this burden of proof so squarely on the state to prove an act that would require the death penalty, it would, ideally, remove any doubt that a person is guilty. Juries are instructed that, in order for a conviction, the defendent must be proven to have committed the crime, thus removing any doubt and any need for a ‘second day in court’. Now then, back to reality…

We all know justice is not blind. The best criminal lawyers either work for the prosecution arm of the government or for the wealthy arm of private citizens. By and large, persons accused of a capitol offense are poor and cannot afford the lawyers that will either prove their innocence or provide enough of a reasonable doubt for a jury to acquit. As good intentioned as public defenders are, they just do not have the time or resources the prosecution does, and therefore end up losing a vast majority of cases, even if their client is not guilty. Couple this with the ambition to be the next D.A. by the person prosecuting the case and the average jury member’s need to ‘make someone pay’, and it just doesn’t paint a pretty picture for the poor, under-represented, falsely accused.

By law, if a person is convicted of any crime, he/she must have been proven guilty, beyond a reasonable doubt, of the crime, but for the reasons listed above, we all know this to not be the case where the rubber hits the road. There are innocent people in jail that have been ‘proven’ guilty in a court of law. The question for society is, at what point do we say it is worth putting an innocent person to death in order to keep our system of capital punishment intact? How many innocents are we to accept must die to protect the system?

After re-reading my statement, it could appear that I am soft on those that commit these crimes and that I believe there are more innocents in jail than there are those that are guilty… and that is not true. I, personally, have no remorse for killers, child rapists, and terrorists that are put to death… none. My point is that the risk of putting an innocent to death for a crime they did not commit is even more repulsive.

And I agree with you both, essentially. I don’t want to see any innocent person die for any reason, though obviously we can’t control all forms of death. I would like to believe that even those who ultimately are responsible for the death of a prisoner based on trial outcome, would perhaps change their minds were they to follow the case through to “the end”. We know that there are a number of executions being stayed now while the Supreme Court decides on the humanity of the procedure.
Even looking at the jury procedure is not necessarily a guarantee that the defendent is truly guilty. The evidence was produced, arguments made, and ultimately it was the “belief” of 12 jurists that person did the crime and deserved the punishment. Belief is not an ironclad determinate of guilt. The human factor is not perfect where belief and feelings are involved.
Population factor and overcrowding in correctioanal institutions would certainly take up all columns on here and weeks to NOT come to any conclusions as where a line could be drawn, if any.

After re-reading my statement, it could appear that I am soft on those that commit these crimes and that I believe there are more innocents in jail than there are those that are guilty… and that is not true. I, personally, have no remorse for killers, child rapists, and terrorists that are put to death… none. My point is that the risk of putting an innocent to death for a crime they did not commit is even more repulsive.

I’ve read once, and hopefully I remember that correct figure, that 3% of the people on death row were innocent of the crime that placed them there. While this doesn’t make for a good debate, I whole-heartedly agree with the above and other statements that were previously made.

There’s not much I can do Philippe about your disappointment that the “fry ‘em crowd” didn’t come out to play yet, but I can offer a perspective that is substantially different than what most of the comments so far reflect.

I understand that most of Europe regards America’s tenacity to the death penalty as little less than barbarism. I also realize that consistently the most effective argument in convincing wafflers that it should be banned is the notion that it is abhorrent that the state should ever execute an innocent person. I personally agree with the recent ABA position that a moratorium on the death penalty in the United States is appropriate.

Nonetheless, I am not MOST horrified by the possibility that permitting the death penalty might result in the execution of an innocent. There are some things worse than death - for that matter who’s to say how bad death is? Some believe that it will be glorious, in fact.

I could think of several improvements to our justice system, which if it were up to me, I would choose to implement over the elimination of the death penalty.

Granting that such a thing is not truly quantifiable, pretend with me that it is and that rules could be put in place which would reduce the influence of money and connections in finding and convicting the perpetrators of crimes by 90%. Not only on death row, but throughout the justice system, only one tenth as many innocents would be punished for crimes they did not commit, and very likely more of the guilty would have been brought to justice. Putting such rules in place, in my opinion, would be a bigger improvement to our system of justice than eliminating the death penalty.

But we live in the world we do, and it’s much easier to sell a simple idea - do away with the death penalty - based on the emotive reaction to the horror that the state occasionally errs and executes the innocent. And since evidence more and more points to not infrequent miscarriages of justice, perhaps the time will soon come when this idea may finally carry the day.

Still, don’t be fooled by the lack of vengeful comments in this thread into believing that course won’t be challenged vociferously every step of the way.

In the meantime I’ll continue to watch with interest what happens in the case of Troy Anthony Davis. If years from now he eventually dies in prison as an innocent man, is not that every bit as outrageous as executing him? Maybe not, but I’m not so sure.

Walker… you wrote a great article, and thank you for beginning this discussion. You said:

Granting that such a thing is not truly quantifiable, pretend with me that it is and that rules could be put in place which would reduce the influence of money and connections in finding and convicting the perpetrators of crimes by 90%. Not only on death row, but throughout the justice system, only one tenth as many innocents would be punished for crimes they did not commit, and very likely more of the guilty would have been brought to justice. Putting such rules in place, in my opinion, would be a bigger improvement to our system of justice than eliminating the death penalty.

Let me know if I am reading this correctly… if we were to (magically) cut by 90% the number of wrongly convicted person, you would then be in favor of the death penalty? Am I reading that correctly?

Let me know if I am reading this correctly… if we were to (magically) cut by 90% the number of wrongly convicted person, you would then be in favor of the death penalty? Am I reading that correctly?

No, that’s not what I mean. Thank you for getting me to clarify.

If there were a magic genie who granted me only one of two possible changes, and one of those changes would result in a 90% reduction in all wrongful convictions - for all crimes, and the other would only eliminate the death penalty, then I would choose the former. I might still support work to eliminate the death penalty, but for me the tenfold reduction of the influence of money and connections in our justice system would be a slam dunk winner over simply assuring that no one is ever executed. It certainly would affect far more people.

Walker… got it… thanks for the clarification. I would still choose the latter. But first…

Thank you for calling out the fact that it is not only citizens convicted of capital offenses that are wrongly imprisoned, it runs across the board. The debate upon wrongly convicted persons centers around the death penalty, for obvious reasons, but there are many people behind bars, losing 20 years of their life, for no reason. Now back to the death penalty portion of this topic…

It is my opinion that anyone who argues in favor of the death penalty should be willing to sacrifice their own life or that of a loved one in order to keep the system intact. What I mean is this… if, after accepting that the odd innocent will be put to death under this system, one still chooses to support the death penalty because they think it does more good than harm, then they must be able to live with the possibility of that system wrongfully accusing and convicting their own son/daughter/mother/father/self… they must be willing to accept their own loved one being put to death by the state in order for the greater good of the system of which they are in favor. After all, that one faceless stranger in Texas that is wrongfully put to death is also someone’s son/daughter/mother/father self, whose life is worth no less than that of their own.

Nice article. In terms of the Death Penalty argument, I find the use of the innocent man less convincing than the overall morality/ ethics failure of having the State be responsible for deciding who lives and who dies.

What concerns me about the innocent man argument is that it is so easily brushed under the rug when faced by an example of someone so overwhelmingly guilty of abhorrent crimes that everyone agrees that they deserve to die; the William Wayne Gacy’s of the world. When you put the innocent man argument side by side with person’s who have committed acts of unthinkable brutality even the most vehement attacker of the death penalty end up saying, “well he deserves to die.”

At that point, the argument is lost. We are then on a sliding scale where we have given the State an ok to decide what crimes meet the standard that most people will say, “well he deserves to die.”

I believe that this is one of the few cases where a political argument is better served by abstraction rather than grounding in real-world examples. It is not ok for the State to make the decision to kill people on behalf of us. The right to life is the first among the liberties afforded to us in the Constitution. While we can decide as a people that punishment of crimes requires for a temporary or even permanent stripping of other liberties; we should never permanently revoke the foremost of our liberties of any citizen.

When you put the innocent man argument side by side with person’s who have committed acts of unthinkable brutality even the most vehement attacker of the death penalty end up saying, “well he deserves to die.”

Not true in my case. Whether or not the example ‘deserves’ to die is irrelevent in my argument. The argument, in its true form, is that the chance of putting an innocent person to death through the death penalty is too great a risk to be found acceptable. At the core of this argument is the inncoent, not the one who is obviously guilty.

Of course, when push comes to shove, we are advocating the same thing.

Did anyone think that proponents of the death penalty would argue that it’s okay to execute innocent people?

I greatly respect Rob’s views on the abstract question of whether the state should ever make such decisions. I don’t agree, however, because as paradoxical as it might seem, there are times when asserting the value of human life in the face of the actions of those who do not value it at all can (or could) be best accomplished by implementing the ultimate penalty. In theory, I’d say that the deaths of Ted Bundys and Timothy Mcveighs are not only “just” but necessary for asserting the values of civilization.

But I also think of this from a conservative point of view. From the practical angle, considering the government’s inability to carry out so many far simpler tasks, should we really trust them with judging matters of life and death as well?

Unfortunately, no. As a conservative Republican, I don’t believe that government should be trusted to even tax me as they want to. I don’t trust them to run the education system or the healthcare system.

I don’t see how I could be logically consistent in wanting to keep them the hell out of our lives in virtually every other area but also trust them with deciding who lives and who dies.

In the abstract, I am for having a death penalty, just as I am for having “education” and “health care.” But, unfortunately, I don’t trust the government to do a good or even acceptable job in any of these areas. Hence I don’t think they SHOULD be doing any of these things.

Nonetheless, I am not MOST horrified by the possibility that permitting the death penalty might result in the execution of an innocent. There are some things worse than death - for that matter who’s to say how bad death is? Some believe that it will be glorious, in fact.

Interesting points.

Let try to see these from tree different point of view:

1) The actual guilty men without death penalty may have a worst punishment than death;

2) Meanwhile, the innocent guy without death penalty could keep hope, as the Justice could keep searching/discover the truth;

3) Whatever, after-death is better than life, so free death penalty for everyone! ;-)

Anyway, thanks for sharing your position. Having to choose between banning death penalty or an huge justice efficiency improvement, I’ll still take the former. Better have a criminal free than an innocent killed by Justice.

On the long term, Justice efficiency should indeed improve but it wont be perfect *ever*. Banning death penalty is just recognizing that fact.

Posted by: Philippe houdoin at November 19, 2007 7:00 AM

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